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LEGAL REMEDIES FOR THE GYPSIES: CAN THE EUROPEAN
LEGAL FRAMEWORKS HOLD FRANCE LIABLE FOR THE
EXPULSION OF THE ROMA?
SYED AHMAD HUDA*
“Let’s make things clear. There can be no dismantling of the
fundamental values on which our societies are built.”1
-Viviane Reding
1. INTRODUCTION
The Roma2 reside at the margins of European society, in life
and in art. In popular cultural representations, they are portrayed
as temperamental, dark-skinned hyper-sexual beings.3 Sometimes,
they even possess magical powers, such as the ability to tell the
future.4 These representations contrast with the ideal European
* J.D. Candidate, 2012, University of Pennsylvania Law School; B.A. 2008,
New York University. I would like to thank the editorial staff of the Journal of
International Law for its hard work on this article. I would like to thank my
sisters, my brother-in-laws and my Law School friends for their unwavering
support, inspiration, and guidance. Above all, I am grateful to my parents for
enabling me to follow my dreams. All errors are my own.
1 Oana Lungescu, Viviane Reding’s BBC Interview on Roma Deportation, BBC
NEWS EUR., Sept. 14, 2010, http://www.bbc.co.uk/news/world-europe11306243.
2 The Roma are also referred to as the Gypsies.
3 See, e.g., WILLIAM SHAKESPEARE, ANTONY AND CLEOPATRA act 1, sc. 1
(describing Cleopatra’s “gipsy’s lust,” which transformed Antony into a
“strumpet’s fool”); 1 VICTOR HUGO, THE HUNCHBACK OF NOTRE DAME 82 (Carey,
Lea & Blanchard 1884) (1831) (“The crowd opened and made way for a bright and
dazzling figure. It was the gipsy-girl. . . . This extraordinary creature appeared by
her fascination and beauty to exercise her sovereign sway over the Court des
Miracles itself.”).
4 See, e.g., CHARLOTTE BRONTË, JANE EYRE 169 (Belford & Clarke 1885) (1847)
(“[T]he gipsy[‘s] strange talk, voice, manner had by this time wrapped me in a
kind of dream. One unexpected sentence came from her lips after another, till I
got involved in a web of mystification, and wondered what unseen spirit had
been sitting for weeks by my heart, watching its workings, and taking record of its
every pulse.”). European society had a fear of magic and witchcraft. See, e.g., the
Witchcraft Act of 1562 (prohibiting “[the] use practise or exercise [of] any
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figure, who is, more than anything else, governed by the faculty of
reason.5 But these representations do not accurately reflect the
Roma condition; rather, they contribute to the myth-creating
exercise in which European society partakes. Indeed, such
representations reflect the “subtle and Eurocentric persistent
prejudice” against the Roma.6 This deep-rooted prejudice has
resulted in the persecution of the Roma throughout European
history, most recently during World War II.7
These prejudices persist in Europe8 today, particularly in
France, which has become the most visible platform for their
expression and implementation. On July 16, 2010, a gendarme9
shot and killed Luigi Duquenet, a 22-year-old Roma, at a police
checkpoint located in the small town of Saint Aignan.10 Officials
say that the car in which Duquenet was a passenger knocked over
a policeman.11 His cousin was the driver, and he refused to pull
over because he did not possess a valid driver’s license.12 Also,
Duquenet had committed a robbery that day and did not want an
Witchecrafte Enchantment Charme or Sorcerie, wherby any p[er]son shall happen
to bee killed or destroyed”).
5 See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT (Book 1 Chapter 8) 18
(G.D.H. Cole trans., J.M. Dent & Sons Ltd. 1947) (1762) (“[W]hen the voice of duty
takes the place of physical impulses and right of appetite . . . man, who so far had
considered only himself, find[s] that he is forced to act on different principles, and
to consult his reason before listening to his inclinations.”).
6 See EDWARD SAID, ORIENTALISM (1978) (describing the “subtle and
Eurocentric persistent prejudice” against the Orient in Western civilization).
7 Germany sent Gypsies to labor camps in 1938–39, which later became
concentration camps. See JEAN-PAUL CLÉBERT, THE GYPSIES xvi (Charles Duff
trans., 1963) (“[Four-hundred thousand] Gypsies were hanged, shot or gassed in
the Nazi concentration camps . . . .”).
8 See Leo Cendrowicz, Sarkozy Lashes Out as Roma Row Escalates, TIME, Sept.
17, 2010, http://www.time.com/time/world/article/0,8599,2019860,00.html
(stating that Italy, Sweden, Belgium, Austria, and Denmark have recently expelled
Roma immigrants).
9 For a definition of “gendarme,” see Gendarme, MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/gendarme (“[A] member of a
body of soldiers especially in France serving as an armed police force for the
maintenance of public order.”).
10 See Richard Boegner, Sarkozy Should Leave the Roma Alone and Tackle the Real
Issues, AM. CHRON. (Oct. 6, 2010), http://www.americanchronicle.com/articles/
view/190285 (providing an account of this incident).
11 Id.
12 Id.
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encounter with the local authorities.13 The next day, several French
Roma, armed with metal rods and axes, attacked the local police
station.14 The mob hacked down trees and burned many cars.15
The riot escalated to such proportions that it took two squadrons of
gendarmes to take control of the situation.16
Soon afterward, President Nicolas Sarkozy held a meeting in
which he ordered that three hundred illegal squats be dismantled
within three months.17 According to Sarkozy, the camps were “of
profoundly shocking living standards,” and were sites of begging,
prostitution, and crime.18 “Interior Minister Brice Hortefeux said . .
. he would use decrees to dismantle about 300 camps, of which 200
belong to Roma.”19 France has sent these Roma back to Romania
and Bulgaria where they suffer much discrimination.20 Digital
fingerprint technology would be used to ensure that those who
had committed a public order offense had no chance of returning
to France.21 Within a month, nearly one thousand Roma were sent
Id.
See Q&A: France Roma Expulsions, BBC NEWS EUR., Oct. 19, 2010,
http://www.bbc.co.uk/news/world-europe-11027288 (recounting these events,
and the erupting tensions between the French Roma and police).
15 Id.
16 See Boegner, supra note 10 (explaining the extent of the tension, and the
need for two squadrons for the French Police to regain control of the situation).
17 See Matthew Saltmarsh, Sarkozy Toughens on Illegal Roma, N.Y. TIMES, July
29,
2010,
http://www.nytimes.com/2010/07/30/world/europe/
30france.html?_r=1 (explaining that Sarkozy ordered the dismantling of three
hundred illegal camps, two hundred of which belonged to the Roma).
18 Q&A: France Roma Expulsions, supra note 14.
19 Saltmarsh, supra note 17.
20 See, e.g., CTR. ON HOUS. RIGHTS & EVICTIONS, WRITTEN COMMENTS OF THE
CENTRE ON HOUSING RIGHTS AND EVICTIONS (COHRE) AND THE EQUAL
OPPORTUNITIES ASSOCIATION TO THE COMMITTEE ON THE ELIMINATION OF RACIAL
DISCRIMINATION AT ITS 74TH SESSION ON THE OCCASION OF THE PERIODIC REVIEW OF
BULGARIA 4, ¶ 3 (2009), available at http://www2.ohchr.org/english/bodies/cerd/
docs/ngos/COHRE_EOA_Bulgaria74.pdf (describing that the Roma face
discrimination in the housing sphere in Bulgaria in the form of forced evictions,
racial segregation, and poor living conditions); see also Jack Greenberg, Report on
Roma Education Today: From Slavery to Segregation and Beyond, 110 COLUM. L. REV.
919, 936 (2010) (describing the school segregation system in Eastern European
countries where the Roma were placed in the same classroom as students with
mental disabilities).
21 Saltmarsh, supra note 17.
13
14
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back by plane to Romania or Bulgaria,22 putting France at the
center of the debate regarding the treatment of Europe’s largest
minority.23
Since the expulsion, President Sarkozy has received much
criticism from the French population, even from within his own
administration. For instance, Defense Minister Hervé Morin, head
of the small New Centre party, described the expulsion as
reflecting “the policy of hate [and] of fear . . . .”24 Some have
viewed this deportation as a calculated, political move by a
President worried about his low approval ratings.25 But the French
authorities remain resistant to such criticisms, and according to the
authorities, the Roma have left or are leaving voluntarily.26 The
Roma are taking a resettlement payment of $385 and a plane ticket
instead of facing forcible expulsion one month later.27 France
insists that the expulsions do not target an ethnic group; rather
each expulsion is handled individually.28 Robert A. Kushen,
executive director of the European Roma Rights Centre
(hereinafter “ERRC”), has criticized this as a false choice: “the
French are trying to insulate themselves from legal challenge,
arguing that those who leave are doing so voluntarily and are not
being expelled as a group.”29
22 See EU: A Key Intervention in Roma Expulsions, HUM. RTS. WATCH (Sept. 14,
2010), http://www.hrw.org/en/news/2010/09/14/eu-key-intervention-romaexpulsions (stating that 979 Bulgarian and Romanian Roma were sent back
between July 28 and August 27, 2010).
23 See id.
24 Hugh Schofield, Security Moves Test France’s Ruling Party, BBC NEWS
EUR., Sept. 2, 2010, http://www.bbc.co.uk/news/world-europe-11155180.
25 See Q & A: France Roma Expulsions, supra note 14 (explaining how the
government has adopted “hardline security measures” due to the government’s
increasing unpopularity).
26 See Steven Erlanger, France Intensifies Effort to Expel Roma, Raising Questions,
N.Y. TIMES, Aug. 20, 2010, at A4 (reporting that, according to the French
government, the Roma flew back to Romania voluntarily).
27 See id. (describing various families who have faced this “false choice”). See
also EU May Take Legal Action Against France Over Roma, BBC NEWS EUR., Sept.
14, 2010, http://www.bbc.co.uk/news/world-europe-11301307 (explaining that
France paid 330 euro per adult and 100 euro per child to Roma in order to
repatriate them to other countries).
28 See id.
29 Erlanger, supra note 26.
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Although this maneuver might help France insulate itself from
legal challenge, the international community has been quick to
voice its concerns. The United Nations (“U.N.”), for instance,
expressed grave reservations regarding the Roma expulsion. At its
annual session in 2010, The Committee on the Elimination of Racial
Discrimination expressed worry that France was not individually
reviewing each expulsion case.30 Pope Benedict XVI also joined the
debate and urged France to treat the Roma with more
compassion.31 But French authorities seemed unmoved and
undeterred.32
The European Union (“EU”) Commissioner for Justice,
Fundamental Rights and Citizenship,33 Viviane Reding, has also
sharply criticized the expulsion. She has labeled the deportations a
“disgrace.”34
Commissioner Reding has even said that the
30 See Interview by Yvette Morris with Pierre Richard Prosper, Vice Chair,
Comm. on the Elimination of Racial Discrimination, in Geneva, Switz. (Aug. 30,
2010) (“Now whether France is actually taking the time to interview and go and
process each person one by one, you know, that may be the case, but all we’re
doing is raising awareness, raising concerns, and hope that the state does the right
thing.”).
31 See Le pape appelle les Français à la tolérance vis-à-vis des Roms [The Pope Asks
the French for Tolerance Regarding the Roma], LE NOUVEL OBSERVATEUR (Aug. 23,
2010, 6:33 AM) (Fr.), http://tempsreel.nouvelobs.com/actualite/societe/
20100822.OBS8839/le-pape-appelle-les-francais-a-la-tolerance-vis-a-vis-desroms.html (“Les textes liturgiques de ce jour nous redisent que tous les hommes
sont appelés au salut. C’est aussi une invitation à savoir accueillir les légitimes
diversités humaines, à la suite de Jésus venu rassembler les hommes de toute
nation et de toute langue.” [“The liturgical texts tell us repeatedly that all men are
called to salvation. It is also an invitation to learn how to accommodate legitimate
differences among humans, just like Jesus came to pull together men of every
nation and every language.”]).
32 See, e.g., Bernard Kouchner, Op-Ed, A Duty to Act in Truth, N.Y. TIMES, Oct.
7, 2010, http://www.nytimes.com/2010/10/08/opinion/08iht-edkouchner.html
(“A lot of them also illegally occupy public or private land. Like any other
government, it is the duty of the French authorities to enforce the law. It is as
simple as that.”).
33 The Commissioner for Justice is one of twenty-seven Commissioners who
comprise the EU Commission, the executive body of the EU. See, e.g., The Members
of the Barroso Commission (2010-14), EUR. COMMISSION, http://ec.europa.eu/
commission_2010-2014/index_en.htm (last updated Feb. 2, 2012) (listing the
twenty-seven Commissioners for the 2010-2014 term); see also The European
Commission at Work: Basic Facts, EUR. COMMISSION, http://ec.europa.eu/atwork/
basicfacts/index_en.htm#comm (last updated July 29, 2011) (explaining how the
Commission works).
34 Press Release, Viviane Reding, Vice-President for Justice, Fundamental
Rights & Citizenship, Eur. Comm’n, Statement on the Latest Developments of the
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Commission would initiate legal proceedings against France,
which could result in heavy fines.35 The role of the Commission,
she asserted, was to act as a “guardian of its treaties.”36 More
controversially, Commissioner Reding said that this was a
situation she thought “Europe would not have to witness again
after the Second World War.”37 On September 29, 2010, the
Commission warned France that it had two weeks to implement
the 2004 EU Directive on Freedom of Movement, which guarantees
EU citizens the right to freedom of movement within the EU.38
Otherwise, the Commission threatened that it would initiate
proceedings against France in the European Court of Justice
(“ECJ”) in Luxembourg.39 Any targeted discrimination of an ethnic
group violates EU law, which includes the Charter of Fundamental
Rights of the European Union (“Charter”).40 Two weeks after she
issued the warning, Commissioner Reding announced that she was
satisfied with France’s timely implementation of her orders.41
Roma Situation (Sept. 14, 2010), available at http://europa.eu/rapid/
pressReleasesAction.do?reference=SPEECH/10/428.
35 See EU May Take Legal Action Against France Over Roma, supra note 27 (“EU
disciplinary action against France could lead to substantial fines.”).
36 Id.
37 Id. See also Sarkozy Denounces EU Commissioner’s Roma Remarks, BBC NEWS
EUR., Sept. 16, 2010, http://www.bbc.co.uk/news/world-europe-11332189
(referring to Reding’s comments as “disgusting” and “shameful”).
38 See Reding, supra note 34 (explaining that France is in breach of the Free
Movement Directive); see also Directive 2004/38/EC, of the European Parliament
and of the Council of 29 April 2004 on the Right of Citizens of the Union and Their
Family Members to Move and Reside Freely within the Territory of the Member
States, 2004 O.J. (L 158) 77.
39 See EU May Take Legal Action Against France Over Roma, supra note 27
(explaining that the case would go before a tribunal in Luxembourg if the
Commission decided to institute legal proceedings).
40 See Charter of Fundamental Rights of the European Union, 2000 O.J. (C
364) 21 [hereinafter Charter] (outlining the fundamental rights accorded to
citizens of the European Union).
41 See Press Release, Viviane Reding, Vice-President, EU Comm’r for Justice,
Fundamental Rights & Citizenship, Eur. Comm’n, Statement on the Recent
Developments Concerning the Respect for EU Law as Regards the Situation of
Roma in France (Oct. 19 2010), available at http://europa.eu/rapid/
pressReleasesAction.do?reference=MEMO/10/502&format=HTML&aged=1&lan
guage=EN&guiLanguage=en
(“French
authorities
submitted
detailed
documentation to the Commission. This documentation includes draft legislative
measures and a credible calendar for putting the procedural safeguards required
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The treatment of the Roma is one of the most urgent human
rights crises in Europe. It is particularly worrisome because the
Roma, unlike other persecuted minorities, have remained in the
shadows of history. The Roma are only associated with the myths
that have been conjured in the past; they are not known for the
repeated acts of persecution and discrimination that they have
endured. Essentially, this Comment seeks to analyze the unique
condition of the Roma and the legal remedies that are available to
them as a people. Section 2 of this Comment traces the history of
the Roma in Europe and in France, which will help place the
current situation in France in a historical and political context.
Section 3 will examine the legality of the expulsion, using the
jurisprudence followed by the ECJ and the European Court of
Human Rights (“ECtHR”). If the legality of the expulsion is
challenged, the case will likely proceed to the ECJ.42 However, a
comparison of the jurisprudence followed by both courts will
highlight the legal challenges that the Roma, as prospective
litigants, would face. Under the jurisprudence of the ECJ, France
has to show that its anti-discriminatory conduct, which involved
targeting the Roma more than other groups in the illegal camps,
was necessary and appropriate to satisfy a legal interest.43 This is a
demanding standard to meet. The ECtHR standard, by contrast, is
more lax since it allows France to pursue a rational aim in targeting
the Roma.44 While the two courts interpret anti-discrimination
differently, they both categorically prohibit collective expulsion;
France would need to show that it did not engage in this type of
expulsion at all.45 This claim of collective expulsion is the strongest
legal argument available to the Roma.
Section 4 of this Comment critically evaluates the legal claims
available to France, and whether France can insulate itself from
legal challenge. For instance, France can rely on the Directive on
the Freedom of Movement, which holds that an EU member state
under the EU’s Free Movement Directive into French legislation by early 2011.
France has thus done what the Commission had asked for.”).
42 See EU May Take Legal Action Against France Over Roma, supra note 27
(explaining that legal proceedings could end up in a European Court of Justice
tribunal in Luxembourg).
43 See infra Section 3.2.
44 See infra Section 3.2.
45 See infra Section 3.2.
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can deport an individual to her or his country of origin after that
individual has remained in the host member state for more than
three months and has not been able to secure employment.46 An
EU member state can also deport an individual if that individual is
a public security risk. Even though France has these options, it
must show that it followed the procedural safeguards and engaged
in the proper decisionmaking process. I argue that France will not
be able to demonstrate compliance with these safeguards, and
thus, even France’s strongest legal arguments will not prevail in
any court.
The Roma endured much discrimination and persecution in the
course of the twentieth century, and little has been done to ensure
them a life of respect and dignity. Indeed, Jack Greenberg notes
that “after centuries of subjugation, including slavery, second-class
citizenship, ethnic cleansing, oppression under communism, and
stigmatization in the modern world, the Roma must launch a
movement to claim their freedom. The Roma must take steps to
cast off their shackles.”47 To some extent, this Comment explores
and evaluates a few of the tools needed to break those shackles.
2.
PAST AS NARRATIVE OF PERSECUTION AND DISCRIMINATION
2.1. The History of the Roma in Europe
The Roma are a nomadic group of people, believed to have
arrived in Europe from the northwest of India at the beginning of
the eleventh century.48 After their arrival, the Roma were subject to
discrimination, if not outright persecution. In the sixteenth and
seventeenth centuries, several laws were enacted in Europe that
banned Roma customs, language, and dress.49 This was done in
order to compel assimilation,50 but soon after, more oppressive
orders were promulgated. The first official repression of the Roma
See infra Section 4.
Greenberg, supra note 20, at 1001.
48 See Q&A: France Roma Expulsions, supra note 14 (describing the origin of the
Roma).
49 See Maryam Hilli, The Forgotten Holocaust: Gypsy, OPPRESSION.ORG (Aug.
19, 2010, 7:02 PM) (originally published Jan. 21, 2005), http://oppression.org/
site/index.php/world/europe/60-the-forgotten-holocaust-gypsy (reviewing the
oppressed history of Gypsies throughout Europe).
50 Id.
46
47
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in France took place in 1539, when there was an order expelling the
Gypsies from Paris. In 1569, England followed France’s suit and
expelled Gypsies under the threat of death.51
Louis XIV of France promulgated a law in which “those who
are called Bohemians or Egyptians52 . . . shall leave the Kingdom
within one month, under penalty of the galleys or other corporal
punishment.”53 Moreover, in 1682 Louis XIV again ordered that
Gypsies were to be sent to the galleys “without other form of trial”
and would serve there “in perpetuity.”54 The women and children,
however, were treated differently.55 The women’s heads were
shaven and the children were taken to “poor-houses” where they
were raised like other French children.56 In 1740, however, the
Gypsies were encouraged to find work, such as in agriculture;
according to Louis XIV, banishment proved to be impossible.57 But
not all of Europe treated the Roma similarly. For instance,
beginning in the seventeenth century, many Roma were forced to
become slaves in Hungary and Romania; these slaves were only
freed in 1855 under the influence of the Western abolitionist
principles.58
In the middle of the eighteenth century, several measures were
taken to compel Roma to conform to the social norms of European
society. Many Roma children were separated from their families
and were subsequently made to live with non-Romani families.59
Id.
The term “Gypsy” is a variation of the word “Egyptian,” reflecting the
common belief during the Middle Ages that Gypsies hailed from Egypt. Id.
53 CLÉBERT, supra note 7, at 60.
54 Id. at 62.
55 Id. at 61 (noting that Gypsy women and children received different
punishments).
56 Id. (explaining that Gypsy women were shaved while children were
removed from their families).
57 Id. at 62 (discussing the policy of Louis XIV to encourage Gypsy
participation in agriculture).
58 See Hilli, supra note 49 (noting that the Roma’s “final liberation” in
Hungary and Romania came in 1855); see also Greenberg, supra note 20, at 924
(assessing the impact of the abolitionist movement on the emancipation of Roma
slaves).
59 See EMP’T & SOC. AFFAIRS, EUR. COMM’N, THE SITUATION OF ROMA IN AN
ENLARGED EUROPEAN UNION 7 (2004), available at http://academos.ro/sites/
default/files/biblio-docs/293/roma04_en.pdf (highlighting efforts undertaken to
compel Roma conformity with European social norms).
51
52
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At that time, other Roma were sent to institutions where they were
supposedly corrected and purged of their “deviant traits.”60
Further, the idea of “Gypsy crime” developed along with the
development of police practices, which further made the Roma the
target of needless prosecution, and hence, persecution.61
When the Nationalist Socialists assumed power in Germany in
the early twentieth century, the persecution of the Roma reached
its zenith. For example, the Roma were initially a part of social
experiments.62 Adolf Hitler wanted to preserve two Gyspy tribes,
as he thought they were the direct descendants of the primitive
Indo-Germanic race; these tribes were meant to be sent to a region
where scholars would be able to study them.63 Nomadic Gypsies
were sent to “residence camps” located near large cities.64 A Nazi
institution was established for the study of Gypsies, called the Race
Hygiene Population Control Center of the National Health Office.65
Notwithstanding the expressed intention to preserve the purity of
the German blood, the Gypsies, along with the Jews, were sent to
concentration camps where they were subject to heinous
treatment.66 Several pieces of legislation were passed during this
period, which further reduced the Roma to second-class citizens.67
60 Id. (noting that Roma were also placed in institutions to rid them of such
traits, and to “end the common existence of the ethnic group itself”).
61 Id. (stating “the development of modern police practices brought with it
the development of ideas of ‘Gypsy crime,’ and with it, comprehensive police
registers of Roma”).
62 DONALD KENRICK & GRATTAN PUXON, GYPSIES UNDER THE SWASTIKA 15
(2009).
63 See CLÉBERT, supra note 7, at 205 (explaining that Gypies were subject to
appalling “biological research”).
64 Id., at 206; see also Letter from Gaultier Portschy of Steiermark to Dr.
Lammers, Reichs-Minister (Jan. 9. 1938), reprinted in CLÉBERT, supra note 7, at 206
(“[B]ecause [the Gypsies] are inveterate criminals who constitute parasites in the
bosom of our people . . . it is fitting in the first place to watch them closely, to
prevent them from reproducing themselves and to subject them of forced labor in
the labor camps.”).
65 See KENRICK & PUXON, supra note 62, at 15 (explaining that the center was
established in 1936 by Dr. Robert Ritter as the main Nazi institution concerned
with research into Gypsies.).
66 See Greenberg, supra note 20, at 925 (noting that Nazis created a program to
exterminate the Roma, similar to their “final solution” to eliminate the Jews.”).
67 See KENRICK & PUXON, supra note 62, at 21 (explaining the impact of the
Nuremberg Laws and the Decree to Prevent Crime on the Roma community); see
also id. at 21 (describing the passage of the Decree on the Fight to prevent Crime in
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It is a well-known fact that more than six million Jews were killed
at Nazi concentration camps during World War II. But few recall,
remember, or even know, the number of Roma killed.68
Interestingly, few races can claim that they were both held in
slavery and were victims of the Holocaust. In fact, according to
Thomas Acton, a Professor of Romani Studies, “when Romani
people from Eastern Europe meet Romani people from NorthWestern Europe today, it is the descendents of the survivors of
slavery meeting the descendents of the survivors of genocide.”69
Whereas the situation for the Jews improved after the
Holocaust, the same cannot be said of the Roma. Indeed, post-War
Eastern European governments never provided any type of aid to
those Roma who did survive the Holocaust.70
Communist
countries were especially hostile toward the Roma. For instance,
Czechoslovakia adopted a coerced sterilization policy towards
Roma women; the practice officially ended in 1990, after the
collapse of the communist state.71 Depriving Roma of further
dignity, concrete walls were built around the Roma villages in
Slovakia.72 Bulgaria also adopted a segregationist policy, sending
1937, which applied to those who showed “antisocial behavior,” including
Gypsies); see also id. at 161 (narrating the passage of the 1935 Law for Protection of
German Blood and Honour). See Herbert Heuss, German Policies of Gypsy
Persecution (1870–1945), in THE GYPSIES DURING THE SECOND WORLD WAR: VOL. I:
FROM “RACE SCIENCE” TO CAMPS 15, 29 (Donald Kenrick trans., 1997) (discussing
the discrimination endured by the Roma during World War II as part of “special
operations” implemented by German forces).
68 See Greenberg, supra note 20, at 925 (presenting an estimate of the number
of Roma killed at 1.5 million people, excluding the number of Roma killed by
Nazi-allied regimes, during the Roma Holocaust).
69 EMP’T & SOC. AFFAIRS, EUR. COMM’N, supra note 59, at 7; see also Lavinia
Gligor, The Concept of Vulnerable People, A Case Study on the Roma Culture 4
(unpublished
case
study)
(on
file
with
author),
available
at
http://www.inclusionexclusion.nl/papers/Gligor,%20Lavinia.pdf.
70 See On the Road: Centuries of Roma History, BBC NEWS, Jul. 8, 2009,
http://news.bbc.co.uk/2/hi/europe/8136812.stm (denoting that the lack of aid
was characteristic on both sides of the Iron Curtain).
71 See Marina Denysenko, Sterilised Roma Accuse Czechs, BBC NEWS, Mar. 12,
2007, http://news.bbc.co.uk/2/hi/europe/6409699.stm (reporting claims that the
Czech government coerced Roma women into undergoing sterilization
procedures).
72 See Nick Thorpe, Slovakia’s Separation Barrier to Keep Out Roma, BBC NEWS,
Mar. 9, 2010, http://news.bbc.co.uk/2/hi/europe/8548417.stm (discussing a new
concrete wall, built by the Slovakian government, dividing the Roma from the
non-Roma).
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Roma children to schools established for children with mental
disabilities.73 There were also efforts to eliminate the supposed
anti-social traits of the Roma.74 Poland and Czechoslovakia
attempted to end nomadism amongst the Roma by transforming
them into a more homogenous proletariat.75 To some extent, these
state efforts were successful because a new generation of Roma
elite was born, and many held high positions in state institutions.76
The Roma did not fare any better in Western Europe. For
example, in Norway and Sweden, there were measures adopted to
force sterilization of both men and women, as well as to place
Romani children in state care.77 Recently, however, Sweden and
Switzerland have provided compensation to many Roma.78
The anti-Romani sentiment particularly increased throughout
Europe after 1989. In Eastern European countries, the Roma were
blamed for a breakdown of public order.79 Many Roma migrated
to Western Europe but were resented by the countries that
harbored them.80 In 1999, the Roma community suffered one of the
greatest threats to its existence since World War II.81 When North
Atlantic Treaty Organization (“NATO”) forces withdrew from the
Federal Republic of Yugoslavia, ethnic Albanians initiated a smear
campaign advocating ethnic cleansing of the Roma, and those
whom they perceived as “Gypsies.” Notwithstanding the U.N.’s
presence in Kosovo, there have been attacks on Romani property,
73 See EUR. COMM’N AGAINST RACISM AND INTOLERANCE, COUNCIL OF EUR.,
THIRD REPORT ON BULGARIA
22
(June
27,
2003),
available
at
http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_03/03_CbC_eng/BGRCbC-III-2004-2-ENG.pdf (noting that Roma children in Bulgaria were sent to
schools designed for mentally disabled children).
74 See EMP’T & SOC. AFFAIRS, EUR. COMM’N, supra note 59, at 8 (discussing steps
taken after World War II to eliminate Roma nomadism).
75 Id. (describing assimilation efforts by Soviet Block countries and their
limited effect on the eradication of racism).
76 Id. (identifying the resulting high numbers of Roma in state institutions).
77 Id., 8–9 (identifying the forced sterilization practices in Norway and
Sweden).
78 Id. (discussing the Swiss government’s recent efforts to compensate the
Roma victims of these practices).
79 Id. (describing the intensity of anti-Roma sentiment including systematic
persecution of Roma, racist movements, and violence).
80 Id. (noting that much anti-Roma sentiment follows alarmist media reports).
81 Id. (leading to the displacement of eighty percent of Kosovo’s Romani
population)
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as well as grenade attacks.82 Roughly 120,000 Roma are displaced
within Kosovo.83
More than a decade into the twenty-first century, the Roma still
occupy the margins of European society. After the fall of the Iron
Curtain and the accession of Central and Eastern European
countries to the European Union, many Roma traveled to other EU
Member States in search of a better life, but have been
disappointed time and time again by the obstacles they have
encountered along this search.84 Today, most Roma live in dire
conditions, often with no electricity or running water.85 They have
few, if any, employment opportunities. Forty-seven percent of
Roma do not know that laws exist that ban discrimination in access
to housing, and few think that they would see any tangible benefit
even if they did report discrimination.86 There are often forced
evictions of Roma residents even if they are regular rent-payers.87
These are just some of the problems that plague the Roma. Even
more troubling, the recent economic crisis has greatly affected the
Roma population because they are more likely to be affected by
such downturns.88 What is worse, there is little reason to believe
that the grim socio-political and economic situation of the Roma
will improve in the near future.
Id.
Id.
84 See EUR. UNION AGENCY FOR FUNDAMENTAL RIGHTS [FRA], THE SITUATION OF
ROMA EU CITIZENS MOVING TO AND SETTLING IN OTHER EU MEMBER STATES 5–9
(2009) [hereinafter FRA, SITUATION OF ROMA EU CITIZENS], available at
http://fra.europa.eu/fraWebsite/attachments/Roma_Movement_Comparativefinal_en.pdf (assessing whether the right of free movement within the European
Union has been respected as regards the movement of Roma throughout Europe).
85 See On the Road: Centuries of Roma History, supra note 70 (describing the
poverty-stricken lives of the majority of Roma).
86 See FRA, HOUSING CONDITIONS OF ROMA AND TRAVELLERS IN THE EUROPEAN
UNION 7 (2009), available at http://fra.europa.eu/fraWebsite/attachments/
ROMA-Housing-Comparative-Report_en.pdf (examining the housing situation
for Roma in Europe and advancing proposals to improve the situation).
87 Id. at 6; see also FRA, THE STATE OF ROMA AND TRAVELLER HOUSING IN THE
EUROPEAN UNION: STEPS TOWARDS EQUALITY 6 (2010), available at
http://fra.europa.eu/fraWebsite/attachments/ROMA-HOUSING-SUMMARY_
EN_Web.pdf (noting that the Roma are often forced to live in low value sites, such
as near waste dumps, which create health hazards).
88 See FRA, SITUATION OF ROMA EU CITIZENS, supra note 84, at 8 (noting the
impact of the economic crisis on the Roma).
82
83
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2.2. France’s Treatment of the Roma
Like most of Europe, France has generally adopted harsh
measures that have targeted the Roma. Even though ninety-five
percent of the Roma in France are French citizens, they are treated
like foreigners.89
In 2000, however, France enacted the Besson Law, which
requires that every municipality of at least five thousand residents
create a stopping area for travellers.90 The law defines travellers as
those with mobile homes. The Roma are not mentioned in the law,
but, because many Roma are mobile, the law clearly applies to
89 For example, in the debates over 2003 anti-Roma legislation in the French
Senate, Senator Bret argued:
Nous ne pouvons que réaffirmer notre opposition la plus ferme à cet article, qui tend à faire des gens du voyage une catégorie à part, une nouvelle classe de personnes dangereuses, . . . au seul motif que leur mode
de vie diffère de celui de la plupart des Français.
Mais . . . les gens du voyage n’en sont pas moins français eux aussi, à 95
% qui plus est ! Pourquoi chercher à tout prix à les marginaliser davantage en offrant aux maires des moyens supplémentaires pour les chasser
de leur territoire communal ?
[We can only reaffirm our firmest opposition to this article [19], which
strives to make the Travellers [Roma] a separate category, a new class of
dangerous persons, . . . the only reason for which is that their way of life
differs from that of the majority of French citizens.
But . . . the Travellers are themselves no less French, 95% of them are at
that! Why search at all costs to marginalize them more by offering local
governments additional means to evict them from their communal territory?].
Statement of Robert Bret, Séance du 13 février 2003 (compte rendu intégral des débats)
[Meeting of February 13, 2003 (complete report of debates)], Art. 19 (2003), available at http://www.senat.fr/seances/s200302/s20030213/s20030213003.html#
int1576.
90 See Loi 2000-614 du 5 juillet 2000 relative à l’accueil et à l’habitat des gens
du voyage [Law 2000-614 of July 5, 2000 concerning the Reception and the
Settlement of Travellers], JOURNAL OFFICIEL DE LA REPUBLIQUE FRANÇAISE [J.O.]
[OFFICIAL GAZETTE OF FRANCE], July 6, 2000, p. 10189 [hereinafter French Law 2000614] (“Dans chaque département, . . . un schéma départemental prévoit les
secteurs géographiques d'implantation des aires permanentes d'accueil et les
communes où celles-ci doivent être réalisées. Les communes de plus de 5 000
habitants figurent obligatoirement au schéma départemental.”
[“In each
department, . . . a departmental scheme provides for geographic areas for the
establishment of permanent camp sites and the communes where they are to be
established. Communes with populations greater than 5000 inhabitants must be
included in the departmental scheme.”]).
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them. It was enacted in large part to improve access to economic
activities in which the travellers can participate, as well as to
improve access to education for their children.91 Although the
Besson Law is admirable and ambitious,92 a majority of French
municipalities have not implemented it.93
This failure to
implement the law on a local level effectively illustrates France’s
general indifference, if not antipathy, towards the Roma.
Examples of such antipathy are countless. For instance, many
mayors of small towns have denied educational access to Roma
children.94 And while the Besson Law afforded the Roma some
dignity in spirit, France soon reversed course when it adopted
Sarkozy Law II in 2003,95 which criminalizes Roma who have not
set up their mobile homes at a legal halting area. Together, the
Besson Law and the Sarkozy Law II have resulted in a Catch-22
91 Id. (“[A]u vu d’une évaluation préalable des besoins et de l’offre existante,
notamment de la fréquence et de la durée des séjours des gens du voyage, des
possibilités de scolarisation des enfants, d’accès aux soins et d’exercice des
activités économiques . . . .” [“[F]ollowing a preliminary evaluation of needs and
existing services, including amongst others the frequency and duration of the
stays by Travellers, the possibility of the education for children, access to
healthcare and the exercise of economic activities . . . .”]).
92 But see id. art. 9 (“En cas de stationnement effectué en violation de l’arrêté
prévu au I, y compris sur le domaine public, le maire peut . . . saisir le président
du tribunal de grande instance aux fins de faire ordonner l’évacuation forcée des
résidences mobiles.” [“When parking is in violation of the order envisaged in
[paragraph] I, including on public property, the mayor may . . . refer the matter to
the president of the superior court for the purpose of ordering the forcible
evacuation of mobile residences.”]).
93 See EUR. ROMA RIGHTS. CTR., ALWAYS SOMEWHERE ELSE: ANTI-GYPSYISM IN
FRANCE 142 (2005) [hereinafter “ERRC”], available at http://www.errc.org/cms/
upload/media/01/A5/m000001A5.pdf (examining the precarious housing and
civil rights situation faced by European Roma, with a particular focus on their
poor treatment in France).
94 Id. at 20.
95 See Loi 2003-239 du 18 mars 2003 pour la sécurité intérieure (1) [Law 2003239 of March 18, 2003 for Interior Security (1)], JOURNAL OFFICIEL DE LA REPUBLIQUE
FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Mar. 19, 2003, p. 4761 (“Dans les
communes non inscrites au schéma départemental, le maire peut . . . ordonner
l'évacuation forcée des résidences mobiles installées sur un terrain privé
n’appartenant pas à la commune, lorsque le stationnement est de nature à porter
atteinte à la salubrité, la sécurité ou la tranquillité publiques.” [“In communes not
included in the departmental scheme, the mayor may . . . order the forcible
evacuation of mobile residences located on private property not belonging to the
commune, where parking is likely to affect the public health, safety or
tranquility.”]).
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situation: because there are too few legal halting areas, many
Roma could face criminal prosecution. Or, more ironically put, “it
is as if you have a game of musical chairs with one chair for five
persons and the four who remain standing risk six months in
prison.”96
In the legislative discussions regarding the Sarkozy Law II, a
Senator referred to the Roma as a “plague of tomorrow . . . . They
are anti-social people who have no respect for private property, no
references, and for whom the words we use have no meaning.”97
Moreover, Paul Girot de Langlade, the Prefect of Vaucluse,98 at a
public meeting two months after the Senate debates of Sarkozy
Law II, said, “I have no particular tenderness for those people.
They live at our expense; from pillage too, everyone knows it.
When they invade a piece of land, believe me, I am always ready to
use all means to expel them.”99 Not all Senators expressed
aversion towards the Roma, however. Indeed, another Senator,
Robert Bret, noted that the Sarkozy Law II essentially equated
travellers with other dangerous peoples.100 He also argued that it
did not make sense to penalize travellers when the goal of the
Besson Law has hardly been realized; the absence of punitive
sanctions for mayors who did not uphold the Besson Law ensured
its non-compliance.101
The failure of the Besson Law and the enactment of the Sarkozy
Law II have made the issue of housing a particularly pressing
problem for the Roma of France. Today, they are made to live in
sub-par conditions, with housing typically close to factories, waste
dumps and polluted rivers.102 Often, they have little access to clean
96 ERRC, supra note 93, at 13 (citing Gens du voyage: la répression et l’absurde
(Canal Plus television broadcast May 10, 2004)).
97 Id. at 32.
98 Id. (“In France, a Prefect is named in each Department by the Government
through a decree of the President, based on propositions from the Prime Minister
and Minister of the Interior. The Prefect is the representative of the Prime
Minister and all of the Ministers in the Department and thus acts as a link
between the State, the Government and the Department.”).
99 Id.
100 See Statement of Robert Bret, supra note 89.
101 Id.
102 See ERRC, supra note 93, at 132 (describing the substandard conditions and
segregation in halting areas for Travellers and Gypsies in France).
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drinking water.103 Many of these halting areas are not fit for
human habitation.104 And when the Gypsies are evicted, they are
not well-treated. For instance, there are police raids early in the
morning, and the police often subject them to physical and verbal
abuse.105 Because of their illegal occupation of land, the travellers
are told to leave the town immediately.106
The housing problem has made it difficult for travellers even to
access basic services. For example, many Roma parents are afraid
of enrolling their children in school in case they are subsequently
evicted.107 The deplorable conditions of various settlements, such
as the lack of water, have made it difficult for parents even to send
their children to school on a daily basis.108 Many school officials
simply refuse to admit them even though the children have a legal
right to an education.109 In short, the French laws have made it
difficult for Roma to find a settlement where they are free from
harassment, and this in turn has an effect on other areas of their
lives, such as their access to free education.
3.
THE LEGALITY OF THE EXPULSION UNDER THE
ECHR AND THE CHARTER
3.1. The Relationship Between the ECHR and the Charter.
Hypothetically, two different courts, applying two different
controlling documents, could review the legality of the Roma
expulsion. First, the European Convention on Human Rights
(hereinafter “Convention”), drafted in 1950, is an international
treaty that protects human rights and fundamental freedoms in
Europe.110 The Council of Europe drafted the Convention, and it
came into effect in 1953. The Convention also created the
European Court of Human Rights (“ECtHR”), which acts as a court
of last resort to which litigants can bring claims that assert
Id.
Id. at 134.
105 Id. at 181–82.
106 Id.
107 Id. at 238.
108 Id. at 235.
109 Id. at 236.
110 See EVELYN ELLIS, EU ANTI-DISCRIMINATION LAW 319 (2005) (describing the
history and effects of the European Convention on Human Rights).
103
104
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violations of a Convention right.
The Convention binds
contracting members of the Council of Europe, including France.
The European Court of Justice could also review the legality of
the expulsion. The ECJ is the judicial branch of the EU. It reviews
the legality of acts of EU Member States; it ensures that these
States, including France, comply with EU law; and it interprets EU
law at the request of States. The Charter, drafted in 2000,
encompasses political, social, and economic rights for EU citizens
and qualifies as EU law. The Charter was not initially binding, but
in 2009, the Treaty of Lisbon gave it absolute legal weight. Thus,
one of the roles of the ECJ is to enforce the Charter.111
The relationship between the ECJ and the ECtHR, as well as the
relationship between the Charter and the Convention, is to some
extent unclear. First, both courts seem to have jurisdiction over
similar cases.112 Second, there is a great degree of overlap between
the Charter and the Convention since both contain antidiscriminatory provisions.113 Notwithstanding these differences,
the two bodies differ in many ways, such as the extent to which
they permit indirect discrimination.114 That is, although both the
Charter and the Convention contain similar provisions, courts have
interpreted them differently. Also, EU law, such as the Charter,
has more legal weight than the Convention.115 For instance, if there
is a conflict between a directly effective EU provision and a
national law, the EU provision is controlling.116 In fact, national
courts must interpret their legislation in light of EU law.117 This is
not the case with the Convention.118 The Convention grants
111 Consolidated Versions of the Treaty on European Union and the Treaty on
the Functioning of the European Union, May 9, 2008, 2008 O.J. (C 115/1), available
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0001:
0012:EN:PDF. See also NICHOLAS BAMFORTH ET AL., DISCRIMINATION LAW: THEORY
AND CONTEXT 50 (2008) (describing the conflict of law in discrimination cases for
member states of both the EU and the Convention).
112 BAMFORTH ET AL., supra note 111, at 50.
113 Id. For a discussion of cases that involve an overlap between the two
courts, see HELEN TONER, PARTNERSHIP RIGHTS, FREE MOVEMENT, AND EU LAW
(2004).
114 BAMFORTH ET AL., supra note 111, at 50.
115 Id.
116 Id.
117 Id.
118 Id.
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citizens of signatory states the right to a remedy where a
Convention right has been violated, but only to the extent the
constitutional system of the signatory state allows.119 Contracting
States are afforded a “margin of appreciation in conforming with
their obligations under the [Convention].”120
3.2. A Comparison of the Anti-Discriminatory Provisions in the
Charter and the Convention
The principal way the Convention protects against
discrimination is through Article 14, which provides that: “The
enjoyment of rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth
or other status.”121 The Article itself does not directly confer
substantive rights, but rather, it does so only in conjunction with
another Article in the Convention.122 It is not necessary that the
plaintiff show that another Convention right has been violated; he
need only show that the matter falls within the ambit of a
Convention right.123 Even though Article 14 contains no explicit
mention of disability or sexual orientation, the phrase “or other
status” suggests that the Convention may be read as applying to
other discriminated groups that the Council of Europe had not
considered when drafting the Convention.124
However,
frustratingly, the Convention does not define discrimination. The
French version contains a broader definition than the English
version:
“sans distinction aucune.”125
In spite of these
shortcomings, Article 14 has the potential to address
discrimination given its broad language.
Id.
Id. at 51 (citing Smith & Grady v. United Kingdom, 29 Eur. Ct. H.R. 493, ¶
¶ 135 (1999)).
121 Convention for the Protection of Human Rights and Fundamental
Freedoms art. 14, Nov. 4, 1950, 213 U.N.T.S. 221.
122 ELLIS, supra note 110, at 320.
123 Id.
124 Id.
125 See id. at 321 (within the context of the Article, “sans distinction aucune”
means “with no discrimination whatsoever”).
119
120
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In construing Article 14, the main inquiry is whether there is a
difference of treatment between two persons in similar
situations.126 The ECtHR held that the equality treatment principle
is breached if the “distinction has no objective or reasonable
justification.”127 The justification should “be assessed in relation to
the aims and effects of the measure at issue.”128 Also, national
courts are given a “margin of appreciation,” which refers to the
“the room for manoeuvre the Strasbourg institutions are prepared
to accord national authorities in fulfilling their obligations under
the European Convention on Human Rights.”129 The ECtHR in
Handyside v. United Kingdom described the rationale behind the
margin of appreciation:
[Because] of their direct and continuous contact with the . . .
forces of their countries, State authorities are in principle in
a better position than the [ECtHR] judge . . . to give an
opinion on the . . . content of these requirements as well as
the “necessity” of a “restriction”. . . .130
This level of inquiry is similar to rational basis review in U.S.
constitutional jurisprudence, which is the lowest level of inquiry.131
The combination of margin of appreciation and the reasonable aim
inquiry makes it easy for signatory states to condone antidiscriminatory conduct.132 However, at times, the margin of
appreciation can be narrowed depending on the type of
discrimination alleged.133 Indeed, the proportionality rule, or the
level of inquiry used, depends on the type of discrimination
Id.
Id. (citing Case “Relating to Certain Aspects of the Laws on the Use of
Languages in Education in Belgium” v. Belgium (Merits) [hereinafter Belgian
Linguistics Case], 34 Eur. Ct. H.R. (ser. A) at 34 (1968).
128 BAMFORTH ET AL., supra note 111, at 73.
129 STEVEN GREER, THE MARGIN OF APPRECIATION: INTERPRETATION AND
DISCRETION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS 5 (2005); see
generally HOWARD CHARLES YOUROW, THE MARGIN OF APPRECIATION DOCTRINE IN
THE DYNAMICS OF EUROPEAN HUMAN RIGHTS JURISPRUDENCE (1996).
130 Handyside v. United Kingdom, Eur. Ct. H.R. (Ser. A) ¶ 48 (1976).
131 See United States v. Carolene Products, 304 U.S. 144, 152 n. 4 (1938)
(articulating rational basis review).
132 BAMFORTH ET AL., supra note 111, at 73.
133 The ECtHR is not willing to give national legislatures a wide margin of
appreciation in sexual orientation discrimination claims. Id. at 76.
126
127
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claim.134 For instance, in the Belgian Linguistics Case, the Court held
that the right to a fair hearing, found in Article 6 of the
Convention, does not compel states to establish an appeals system,
nor does the right to education, found in Article 2, compel states to
establish a particular kind of educational establishment.135 This
shows that signatory states do have a wide margin of appreciation
in their interpretation of the Convention.
The ECtHR’s interpretation of Article 14 has developed over
time. For instance, although Article 14 historically only precluded
direct discrimination, it now bans indirect discrimination.136 Also,
a facially neutral blanket rule, if it disproportionately affects a
particular group, such as one with a particular religious belief,
could run afoul of Article 14.137
The Charter’s provision pertaining to discrimination is worded
differently from the parallel provision in the Convention.138 There
are two main differences between the two. First, Article 14 of the
Convention requires another Convention right to be violated in
order for a litigant to have a viable claim that she has been
discriminated against, whereas Article 21 of the Charter, in
contrast, is free-standing. Second, Article 21 includes a list of more
groups that are deemed to be worthy of protection, which is not
included in Article 14 of the Convention. An example of this is the
sexual orientation suspect group.
134 See id. at 76–80 (mentioning the importance of the proportionality
requirement in Article 14 cases).
135 See Belgian Linguistics Case, 28 Eur. Ct. H.R. (ser. A) at 28 (1968)
(addressing Article 6); id. at 42–43 (addressing Article 2).
136 BAMFORTH ET AL., supra note 111, at 77; see also D.H. v. Czech Republic, 43
Eur. Ct. H.R. 144 (2007) (banning indirect discrimination in a case in which Roma
children were disproportionately educated in “special” schools).
137 BAMFORTH ET AL., supra note 111, at 78; see also Thlimmenos v. Greece,
2000-IV Eur. Ct. H.R. 263, 278-80(finding that a facially neutral law criminalizing
people for not wearing military uniforms violated Article 14 when a Jehovah’s
Witness was sentenced to prison for refusing to wear a uniform and then later
denied employment on that basis).
138 See Charter, supra note 40, art. 21 (“Any discrimination based on any
ground such as sex, race, colour, ethnic or social origin, genetic features, language,
religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation shall be
prohibited.”).
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The ECJ determines whether there has been a case of
discriminatory conduct by applying the proportionality test.139 The
ECJ requires that a “measure be suitable or appropriate, as well as
necessary, to achieve the desired end, as well as . . . proportionate
to that end . . . .”140
This is strikingly different from the standard used by the
ECtHR in interpreting Article 14 of the Convention. The ECJ’s
review is a heightened level of scrutiny, similar to the strict
scrutiny followed in U.S. constitutional jurisprudence.141
Furthermore, the level of scrutiny employed also depends on
context. For economic matters, the court’s level of inquiry is more
relaxed, but if a litigant claims that her or his fundamental rights
have been violated, the ECJ is willing to examine the alleged
violation closely; the Charter also bans indirect, as well as direct,
discrimination.142
Article 21 of the Charter will likely prove to be more helpful to
the Roma than Article 14 of the Convention. First, the Charter
adopts a more heightened level of inquiry, which means that
France would have to demonstrate that the expulsion was
necessary and appropriate in order to ensure that no one was
occupying its national territory illegally. Second, Article 21 of the
Charter is freestanding and does not need to hook onto another
Charter right in order to be validly applied. Although France
claims otherwise, its expulsion qualifies as direct discrimination. A
memorandum that circulated within the French equivalent of the
Department of Homeland Security basically called for the targeting
of Roma.143 This leaked memorandum is a crucial piece of
BAMFORTH ET AL., supra note 111, at 113.
Id.
141 See, e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944) (noting that
“all legal restrictions which curtail the civil rights of a single racial group are
immediately suspect” and “courts must subject them to the most rigid scrutiny”).
142 See Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) 1, 24–25 (1981)
(holding that a U.K. law prohibiting sodomy was illegal because the benefits of
the law did not outweigh the disadvantages, such as the invasion of right to
privacy, as required by the principle of proportionality). See also BAMFORTH ET AL.,
supra note 111, at 109 (stating that the Charter bans indirect discrimination).
143 Memorandum from Brice Hortefeux, Minister of the Interior, to Michel
Gaudin, Prefect of Police, Frédéric Péchenard, Gen. Dir. of the Nat’l Police, General Jacques Mignaux, Gen. Dir. of the Nat’l Gendarmerie, the Prefects, & Francis
Delon, Sec’y Gen. for Def. & Nat’l Sec. (Aug. 5, 2010) (on file with author) (ordering that the camps must be dismantled with a priority placed on those of the Ro139
140
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evidence since it proves that the Roma were not the target of
indirect discrimination, but rather, they were the target of direct
discrimination. Even if this memorandum were not available, two
hundred out of the three hundred dismantled camps were
occupied by the Roma.144 It might be possible to prove that
Sarkozy’s expulsion order had a disproportionate impact on the
Roma and therefore, this would be an act of prohibited indirect
discrimination. Still, the memorandum highlights the fact that the
Roma were the target of direct discrimination, and therefore, they
should be able to allege successfully France’s violation of Article 21
of the Charter.
3.3. Comparison of the Collective Expulsion Provisions in the
Convention and the Charter
Article 19 of the Charter states that: “(1) Collective expulsions
are prohibited; [and] (2) No one may be removed, expelled or
extradited to a State where there is a serious risk that he or she
would be subjected to the death penalty, torture or other inhuman
or degrading treatment or punishment.”145 If a person is expelled
without the case having been reviewed individually, that
expulsion is an instance of collective expulsion.146 This Article is
concerned more with the procedural dimensions of expulsion. The
European Commission of Human Rights (“the Commission”)147
ma, and that the establishment of new camps should be impeded; however, the
State must take care not to conduct a policy of simple human displacement). See
also Kim Willsher, France’s Deportation of Roma Shown to be Illegal in Leaked Memo,
Say Critics, GUARDIAN, Sept. 13, 2010, http://www.guardian.co.uk/world/2010/
sep/13/france-deportation-roma-illegal-memo.
144 Saltmarsh, supra note 17 (“Interior Minister Brice Hortefeux said . . . he
would use decrees to dismantle about 300 illegal camps, of which 200 belong to
Roma.”).
145 Charter, supra note 40, art. 19. See also JUSTICE Commentary on Art. 19
Protection in the Event of Removal, Expulsion, or Extradition, EU CHARTER
FUNDAMENTAL RTS., http://www.eucharter.org/home.php?page_id=94 (last
visited Apr. 16, 2012) (noting that each decision on deportation is meant to be
based on a specific examination, and that “no single measure can be taken to expel
all persons having the nationality of a particular State”).
146 YUTAKA ARAI ET AL., THEORY AND PRACTICE OF THE EUROPEAN CONVENTION
ON HUMAN RIGHTS 677 (Pieter Van Dijk et al. eds., 3d ed. 1998).
147 The role of the Commission is to review admissibility of applications and
ensure that domestic remedies have been exhausted, as well as to review the
applications themselves. See Jonathan L. Black-Branch, Observing and Enforcing
Human Rights Under the Council of Europe: The Creation of a Permanent European
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has held that such an individual treatment must, most notably,
entail an objective weighing of the interests of the individual and
the authority seeking the expulsion.148
The collective expulsion provision was enacted because of two
ECtHR cases: Soering v. UK149 and Ahmed v. Austria.150 In the
Soering case, the plaintiff was to be sent to Virginia where there
was a strong possibility that he would be executed; execution is a
violation of Article 3 of the Convention. The ECtHR held that a
state must consider the consequences of returning an individual to
another country where he might endure punishment that breaches
the Convention.151 In the Ahmed case, a Somali refugee, upon being
convicted of attempted robbery, was to be deported to Somalia, but
the Court found that since he would face degrading treatment
there, he could not be legally deported.152
In the Soering case, the ECtHR considered whether, if the
plaintiff was sent to Virginia, there was a chance that his Article 3
right would be violated. The Article states: “No one shall be
subjected to torture or to inhuman or degrading treatment or
punishment.”153 The Court held that the possibility of execution
qualified as “inhuman or degrading treatment or punishment;”
“inhuman” treatment includes premeditated treatment, which was
“applied for hours at a stretch and ‘caused, if not bodily injury, at
least intense physical and mental suffering . . . .’”154 Moreover, the
term “degrading” refers to treatment that is likely to “‘arouse in
[its] victims feelings of fear, anguish and inferiority capable of
humiliating and debasing them and possibly breaking their
physical or moral resistance.’”155
Court of Human Rights, 3 BUFF. J. INT’L L. 1, 17–21 (1996) (describing the
Commission’s work).
148 ARAI ET AL., supra note 146. See A. v. Netherlands, App. No. 14209/88, 59
Eur. Comm’n H.R. Dec. & Rep. 274, 277 (1988) (finding no case of collective
expulsion where applicants were able to present their cases before the Minister of
Justice and the courts).
149 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989).
150 Ahmed v. Austria, 1996-VI Eur. Ct. H.R. (No. 26) 2194.
151 Soering, 161 Eur. Ct. H.R. at 44–45.
152 Ahmed, 1996-VI Eur. Ct. H.R. at 2208.
153 European Convention on Human Rights art. 3, Nov. 4, 1950, 213 U.N.T.S.
221.
154 Soering, 161 Eur. Ct. H.R. at 39.
155 Id.
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Here, it is certain that the Roma will be subject to humiliating
treatment upon their return to Bulgaria or Romania.156 For
example, “70% of Roma children have either never attended school
or dropped out of the overcrowded ‘Gypsy schools’ in the early
grades.”157 Also, the Roma must often deal with the vexing
problem of segregated housing.158 But it is unclear whether such
acts of discrimination rise to the level of an Article 3 violation.
Even though it is difficult to show that there is an Article 19(2)
violation, Article 19(1) unequivocally states that collective
expulsions are prohibited. At this point in time, it is unclear
whether the French authorities are individually reviewing each
case of expulsion, and engaging in the objective weighing of the
individual’s interests and the state’s interests. France expelled
roughly a thousand people within a span of one month.159 It is
hard to imagine that each of these expulsions was based on an
objective balancing of interests. Further, the leaked memorandum
highly suggests that no balancing of interests ever took place.160
Protocol 4, Article 4 of the Convention also unequivocally
prohibits collective expulsion of aliens.161 The legislative history of
156 See, e.g., CTR. ON HOUS. RIGHTS & EVICTIONS, supra note 20, at 4–5, ¶ 7
(noting that the Roma face discrimination in the housing sphere in Bulgaria in the
form of forced evictions, racial segregation, and poor living conditions: “The
informal nature of the housing occupied by some Roma is put forth by Bulgarian
authorities as justification for their failure to assist Romani residents and, at times,
to harass them and/or to subject them to invasive practices incompatible with the
international human rights standards to which Bulgaria has voluntarily agreed to
be legally bound, including ICERD.”); see also Greenberg, supra note 20, at 936
(describing the school segregation system in Eastern European countries under
which the Roma were placed in the same classroom as students with mental
disabilities).
157 Rossen Vassilev, The Roma of Bulgaria: A Pariah Minority, 3 GLOBAL REV.
ETHNOPOLITICS 40, 47 (2004), available at http://www.ethnopolitics.org/
ethnopolitics/archive/volume_III/issue_2/vassilev.pdf.
158 See id. at 46 (“Like Roma in many other parts of the former East bloc, the
Bulgarian Roma face segregation and discrimination in employment, housing,
education, health care, criminal justice, and the military.”).
159 See EU: A Key Intervention in Roma Expulsions, supra note 22 (979 Bulgarian
and Romanian Roma were deported between July 28 and August 27, 2010).
160 See Memorandum from Brice Hortefeux, supra note 143; Willsher, supra
note 143.
161 France ratified this Protocol in 1974. See Status of Protocol No. 4 to the
Convention for the Protection of Human Rights and Fundamental Freedoms, TREATY
OFFICE, COUNCIL OF EUR. (Jan. 24, 2011), available at http://conventions.coe.int/
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the Protocol suggests it was drafted in response to the “relatively
clear-cut mass expulsions of ethnic Germans and Eastern
Europeans after World War II.”162 Like the Charter, an alleged
expulsion under the Convention “must be conducted without
individual review.”163
One of the chief cases interpreting this Article of the
Convention is Čonka v. Belgium, which was the first case in thirtyfive years to favor an applicant claiming a signatory state engaged
in collective expulsion.164 In that case, the Roma plaintiffs were
expelled from Belgium to Slovakia based on their country of origin.
The plaintiffs were called to the police station, along with other
individuals of the same origin. At the station, the plaintiffs were
told, along with the other Roma families, that they were to be
deported.165 The ECtHR noted that there were several factors that
suggest there was a collective expulsion of aliens. First, before the
plaintiffs’ expulsion, the political authorities had announced that
such an operation would be undertaken.166 Second, all aliens had
to arrive at the police station at the same time.167 Third, the terms
of their arrest were identical.168 Finally, many of the aliens were
unable to get in touch with a lawyer.169 Thus, the ECtHR found
that there was a violation of Protocol 4, Article 4 of the Convention.
It is unlikely that France afforded the Roma the same
procedural guarantees the ECtHR mentions in Čonka. For instance,
Treaty/Commun/ChercheSig.asp?NT=046&CM=8&DF=24/01/2011&CL=ENG
(last visited Mar. 24, 2012).
162 Jacob D. Howley, Note, Unlocking the Fortress: Protocol No. 11 and the Birth
of Collective Expulsion Jurisprudence in the Council of Europe System, 21 GEO. IMMIGR.
L.J. 111, 115 (2006) (footnote omitted).
163 Id.
164 See id. at 121 (analyzing collective expulsion case law and describing the
growing receptiveness of courts toward collective expulsion claims).
165 A note concerning immigration policy was approved by the Belgium
Cabinet: “‘A plan for collective repatriation is currently under review, both to
send a signal to the Slovakian authorities and to deport this large number of
illegal immigrants whose presence can no longer be tolerated.’” Čonka v.
Belgium, App. No. 51564/99 Eur. Ct. H.R. at 10 [¶ 31] (2002) (citing “Note
providing General Guidance on Overall Policy in Immigration Matters” (Oct. 1,
1999)).
166 Id. at 20.
167 Id.
168 Id.
169 Id.
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it is probably the case that the Roma families were not able to
contact a lawyer. That the Roma were essentially rounded up and
returned to either Bulgaria or Romania implies that there was no
individual consideration of each case; this is similar to the
congregation of the Roma families at the police station in the Conka
case. In short, the provision in the Convention prohibiting
collective expulsion works very similar to the parallel provision in
the Charter. It seems both provisions would support finding
France liable for the collective expulsion of the Roma without due
consideration of each individual’s case, whereas France maintains
that it is targeting breeding grounds for crime.
4.
FRANCE’S POSSIBLE DEFENSES
To be sure, France has some strong legal arguments in favor of
the deportation of at least some Roma. The main source that
President Sarkozy can rely on is the EU Directive170 on Freedom of
Movement which states that EU citizens can stay after a period of
three months only if (1) they are either self-employed or can legally
work in the host Member state; (2) they have sufficient resources
for themselves and their families such that they are not a burden
on the host Member state; or (3) they are enrolled in a public or
private institution for studies and have health insurance.171 The
170 EU Directives are legislative acts of the EU, which require that EU
Member states implement the Directive. Nevertheless, states are not directed as to
how they should implement the Directive. See Application of EU Law: Directives—
Definitions, EUR. COMMISSION, http://ec.europa.eu/eu_law/directives/directives_
en.htm (last updated Aug. 17, 2011) (“EU directives lay down certain end results
that must be achieved in every Member State. National authorities have to adapt
their laws to meet these goals, but are free to decide how to do so.”).
171 The EU Directive states:
All Union citizens shall have the right of residence on the territory of
another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or (b)
have sufficient resources for themselves and their family members not to
become a burden on the social assistance system of the host Member
State during their period of residence and have comprehensive sickness
insurance cover in the host Member State; or (c) are enrolled at a private
or public establishment, accredited or financed by the host Member State
on the basis of its legislation or administrative practice, for the principal
purpose of following a course of study, including vocational training;
and have comprehensive sickness insurance cover in the host Member
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Directive also states that EU citizens may be expelled because of
public policy, public security or public health concerns.172 Before a
host Member state expels an individual based on public policy or
security concerns, however, it must take into account a variety of
factors, such as his age, extent of cultural integration into the host
Member state, family and economic situation, and cultural
connections with the country of origin.173 Moreover, a host
Member state cannot expel an individual if that person has lived in
the state for the previous ten years or if that person is a minor.174
To justify the legality of the deportation of several Roma,
President Sarkozy claims that the Roma campsites are a breeding
ground of begging, prostitution and other crimes.175 There is a
grain of truth in this statement. For instance, in 2003, police
arrested sixty-seven Roma outside Paris for sexual enslavement of
children; these children were kidnapped from Romania, raped to
make them obey, and sent to the streets of Paris to prostitute
themselves.176 Furthermore, Interior Minister Brice Hortefeux said
that the “‘delinquency of Romanian origin’” in Paris had increased
“‘by 138% in 2009 and 259% in eighteen months.’”177 Further, he
noted that “‘in Paris, the reality is that almost one thief in five is a
Romanian’” and that “’one theft in four by minors is committed by
State and assure the relevant national authority, by means of a
declaration or by such equivalent means as they may choose, that they
have sufficient resources for themselves and their family members not to
become a burden on the social assistance system of the host Member
State during their period of residence; or (d) are family members
accompanying or joining a Union citizen who satisfies the conditions
referred to in points (a), (b) or (c).
Council Directive 2004/38/EC, supra note 38, art. 7, at 93–94.
172 Id. art. 28–29 at 115–16.
173 Id. art. 28(1) at 115.
174 Id. art. 28(3) at 115.
175 See Q&A: France Roma Expulsions, supra note 14 (“A statement from the
president’s office said the camps were ‘sources of illegal trafficking, of profoundly
shocking living standards, of exploitation of children for begging, of prostitution
and crime.’”).
176 See 2005 Country Reports on Human Rights Practices: France, U.S. DEP’T
STATE, http://www.state.gov/j/drl/rls/hrrpt/2005/61648.htm (last visited Apr.
16, 2012) (describing various human rights issues in France, including
discrimination, societal abuses, and human trafficking).
177 Michael Cosgrove, Op-Ed., Is France Lying About Roma Crime Rates?,
DIGITAL J. (Sept. 3, 2010), http://www.digitaljournal.com/article/297015.
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a Romanian minor.’”178 However, evidence suggests that such
statistics are suspect.179 Though some Roma may very well commit
crimes, it is unclear whether they commit crimes at a greater rate
than other minority groups with little access to education and
employment.
Even if it were true that twenty percent of all thieves are Roma,
the Directive requires that host Member states follow the
proportionality principle when considering expelling an individual
from the state.180 This means that France would need to show that
the expulsion of such individuals would not be “manifestly
disproportionate to the gravity of the infringement.”181 This is
quite a demanding requirement because France would have to
show that in each case of expulsion, the individual posed such a
security risk to the public that deportation was the necessary and
proportionate response. But deportation of an individual for
committing a petty crime is not a proportionate response. Further,
even if the crime rate is higher within the Roma community,
deportation is still unwarranted. Authorities cannot rely on such
collective statistics when considering the deportation of a single
individual; this falls outside the scope of factors authorities should
take into account when considering the expulsion of an
individual.182
It would be difficult for France to show that each Roma
deported was a security risk. A better claim would be that each of
the Roma stayed beyond the three-month period, but was not able
Id.
See id. (noting that the alleged statistics are far-fetched and that there is no
way to verify them); see also C.J. Chido, Peril of Movement: Migrating Roma Risk
Expulsion as EU Member States Test Limits of the Free Movement Directive, 20 TUL. J.
INT’L & COMP. L. 233, 252 (2011) (noting that the “more likely explanation [for the
expulsion] is that they are . . . Roma who exercised their right to free movement”).
180 See Council Directive 2004/38/EC, supra note 38, art. 27(2), at 114
(“Measures taken on grounds of public policy or public security shall comply
with the principle of proportionality and shall be based exclusively on the
personal conduct of the individual concerned.”).
181 Case C-459/99, MRAX v. Belgium, 2002 E.C.R. I-6630, I-6664 [¶¶ 77, 78],
available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:
61999CJ0459:EN:PDF (applying the proportionality principle to the case); see also
BAMFORTH ET AL., supra note 111, at 113 (describing the proportionality test).
182 See Council Directive 2004/38/EC, supra note 38, art. 27(2), at 114
(“Measures . . . shall be based exclusively on the personal conduct of the individual
concerned.”) (emphasis added).
178
179
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to secure employment. However, in France, Bulgarian and
Romanian citizens must obtain a work permit, which is determined
by the condition of the economic market.183 This effectively means
that France has reduced the type of employment that the Roma can
hold “to a list of 150 jobs which are in need of workers.”184
Therefore, it seems France is making it difficult for the Roma to
even satisfy a condition that would enable them to remain for more
than three months. Still, even if France expels these individuals
who have stayed beyond the three-month period, these expelled
Roma can legally return to France.185 Moreover, the ERRC claims
that it was not determined for every Roma expelled whether he or
she had been in France for fewer than three months. Therefore,
even though France has a right to expel some Roma, it is not clear
whether France legally expelled those Roma who were residing in
France in violation of the Directive.
Undoubtedly, France has some potentially viable claims
against the expelled Roma. For instance, France could assert that
each of the Roma expelled posed a security risk and that
deportation was the proportionate response to that risk. However,
such an argument would hardly be persuasive given that so many
Roma were expelled in a short span of time. Further, the high
crime rate within the Roma community, even if true, does not
necessarily justify the deportation of any one particular Roma
individual. Alternatively, France would have to demonstrate that
the Roma expelled were living in France beyond the three-month
deadline without any security of employment. While this is a
legally viable claim, the ERRC has reported several cases in which
the Roma were expelled without any meaningful consideration of
their cases. Even if France had legal options available, the manner
in which the deportations were conducted suggests that it had
improperly engaged in collective expulsion of the Roma.
183 See Virginie Semedo, The Deportation of Roma People by France: Or How to
Displace a Problem Instead of Solving It, MIGRANTS’ RTS. NETWORK (Sept. 20, 2010),
http://www.migrantsrights.org.uk/migration-pulse/2010/deportation-romapeople-france-or-how-displace-problem-instead-solving-it
(describing
the
restricted freedom of movement of Roma people in France).
184 Id.
185 See id. (recognizing the absence of a system that would prevent expelled
Roma from legally returning to France).
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CONCLUSION
The Roma have been the subject of persecution throughout
history, especially during World War II, where they were killed in
large numbers.186 The condition of the Roma has not considerably
improved because they have since been subject to segregated
housing and schools187 and forced sterilizations.188 The legal
remedies available to them have been few and far between. But
with the jurisprudential development of the European courts, the
ECJ and ECtHR, there are more legal remedies that the Roma can
take advantage of now, thereby moving them closer towards the
achievement of a life of dignity. The 2010 expulsion of the Roma
from France has been one of the most high-profile examples of
mistreatment against the Roma. There is some evidence that
suggests that a collective expulsion took place, without due
consideration of each individual case.189 Indeed, given the swift
execution of the deportation of nearly one thousand Roma,190 it is
very much likely that there was a collective expulsion. Moreover,
France acted in an anti-discriminatory manner because it
specifically targeted the Roma when dismantling all the illegal
camps.
Both the Charter and the Convention prohibit direct
discrimination. The Charter adopts a heightened level of inquiry,
which means that France must show that its actions were necessary
and appropriate to deal with the Roma’s illegal occupation of its
186 See Greenberg, supra note 20, at 925 (“[O]ne estimate is that the Nazis
killed at least 1.5 million in the Roma Holocaust . . . a number that does not
include Roma exterminated by Nazi allied states.”).
187 See Vassilev, supra note 157, at 47 (describing the low education and
illiteracy problems among Roma people that result from the “deliberate
segregation and exclusion of Roma children from ethnic Bulgarian schools and
classes”).
188 See Denysenko, supra note 71 (highlighting the allegations that Roma in
the Czech Republic were sterilized against their wills).
189 See Robert Kushen, Exec. Dir., Eur. Roma Rights Ctr., Submission in
Relation to the Analysis and Consideration of Legality Under EU Law of the Situation of
Roma in France: Factual Update, to the Eur. Comm’n and Eur. Parliament (Sept. 27,
2010), available at http://www.errc.org/cms/upload/file/france-ec-legalbrief-27sept-2010.pdf (summarizing evidence that France “singled out Roma as an ethnic
group for law enforcement action”).
190 See EU: A Key Intervention in Roma Expulsions, supra note 22 (noting the
expulsion of 979 Roma from France in 2010).
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territory.191 The Convention, by contrast, lacks teeth because
France need only show that its actions had an objective, rational
purpose; its use as a legal shield will not be as effective as the
Charter.192 Furthermore, the Convention allows the signatory
states a significant margin of appreciation in their interpretation
and implementation of the Convention.193 Therefore, under the
Charter, France will find it difficult to demonstrate the necessity
and appropriateness of its discriminatory actions; under the
Convention, however, France need only show a rational aim,
which is significantly easier to do.
In addition to violating the anti-discriminatory provisions,
France has also violated the prohibition on collective expulsion,
which is unequivocally prohibited by both the Convention and the
Charter. It is doubtful that France engaged in the proper
decisionmaking when considering the deportation of each Roma,
which requires balancing the interests of the individual with its
own interests.
The only way France can prevail is by
demonstrating that it engaged in no collective expulsion, and
indeed, France can even rely on the Directive on the Freedom of
Movement to support its claim. For example, those individuals
who have been present in France for a period of more than three
months and have not secured employment are not legally entitled
to remain in the state.194 Moreover, France can even deport an
individual if that individual poses a security risk. However,
France would have to show that it applied the proportionality
principle; this is an extraordinary hurdle for France to overcome
given that nearly one thousand Roma were expelled within a
month.
The collective expulsion claim is an important one because the
history of Europe is fraught with examples of collective expulsion,
most prominently with the expulsion of the Jews from Nazi
191 See BAMFORTH ET AL., supra note 111, at 113 (providing an overview of the
proportionality test).
192 See BAMFORTH ET AL., supra note 111, at 77–78 (observing the court’s
holding that states can violate the rights granted under Article 14 when they act
“without an objective and reasonable justification”).
193 BAMFORTH ET AL., supra note 111, at 76–77.
194 Council Directive 2004/38/EC, supra note 38, arts. 6–7, at 92–93.
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Germany.195 This treatment of the Roma is a painful reminder that
the specter of collective expulsion haunts us still in the twenty-first
century, and that a state indulges in its xenophobic tendencies
when it expels groups of aliens en masse. A robust legal
framework did not exist when previous collective expulsions had
taken place, but legal frameworks exist today to protect those who
are politically vulnerable.
That the Roma are the “most
impoverished, marginalized and discriminated group in Europe”
makes reliance on the collective expulsion provisions in both the
Charter and the Convention all the more urgent.196
The discriminatory nature of the collective expulsion of the
Roma highlights the racist motivations behind France’s actions.
France might claim otherwise, but its actions serve to ensure that
the Roma remain as the “other,” the elusive figure in the shadows
of society. The Roma, unlike other peoples, lack the political
capital to assert their fundamental human rights, and as a result,
cannot escape the shadows into which they have been thrust.
Because of the “difficulties surrounding the identification and
definition of discrimination,” there is always a danger that the
Roma will not be able to successfully assert their political voice.197
But after years of discrimination and expulsion from their own
settlements, the Roma now stand a good chance of prevailing
should EU Justice Commissioner Reding initiate a legal action
against France.
However, even Commissioner Reding has
rescinded the threat of legal action.198 The legal remedies are
195 See JEAN-MARIE HENCKAERTS, MASS EXPULSION IN MODERN INTERNATIONAL
LAW AND PRACTICE 1–2 (1995) (listing notorious cases in the history of mass
expulsion including “the expulsion of the Jews from England in 1290, the
expulsion of the Jews from Spain in 1492, the expulsion of Moslems from Spain in
1610, the expulsion of Huguenots from France in 1685, the expulsion of
Protestants from Salzburg in 1731, the expulsion of Jews from Bohemia in 1744 . . .
the expulsion Armenians from the Ottoman Empire (Turkish Armenia) in 1915–
1916, and the expulsion of the Jews from Nazi Germany in the period up to
1939”).
196 Morag
Goodwin, Multidimensional Exclusion:
Viewing Romani
Marginalization Through the Nexus of Race and Poverty, in EUROPEAN UNION NONDISCRIMINATION LAW: COMPARATIVE PERSPECTIVES ON MULTIDIMENSIONAL EQUALITY
LAW 137, 137 (Dagmar Schiek & Victoria Chege eds., 2009).
197 See ELLIS, supra note 110, at 3.
198 See Press Release, supra note 41. However, according to Robert Kushen,
the inquiry into the Roma expulsion is ongoing. Statement by Robert Kushen,
Exec. Dir., Eur. Roma Rights Ctr., France and Roma: It Ain’t Over ‘Til It’s Over, (Oct.
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available to the Roma, but the international community must take
an aggressive, uncompromising stance against France. History
shows that many states were able to mistreat the Roma without
any fear of consequence, whether legal or political. The recent
expulsion of the Roma from France is a chance to, if not remedy the
injustices of the past, pave way for a future free of state-sponsored
persecution. Indeed, now more than ever, the marginalized Roma
have a decent opportunity, to borrow Jack Greenberg’s phrase, at
“cast[ing] off their shackles.”199
20, 2010), available at http://medias.lemonde.fr/mmpub/edt/doc/20101021/
1429044_c43e_errc_statement_sarkozy_21_october.pdf.
199 Greenberg, supra note 20, at 1001.